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Do Magistrate Judges Have a Power to Refuse To Sign Warrants Based on Expectations of How a Warrant Would be Executed?:
The Ninth Circuit's new computer search and seizure decision is particularly interesting because of the way it empowers magistrate judges. It envisions magistrate judges as activity overseeing the computer search warrant process, and in particular having the power and duty not to sign warrants unless the judge is satisfied that the warrant will be executed in a way that sufficient protects privacy. The opinion goes out of its way to task magistrates with the job of doing what they need to do to protect privacy:
[W]e must rely on the good sense and vigilance of our magistrate judges, who are in the front line of preserving the constitutional freedoms of our citizens while assisting the government in its legitimate efforts to prosecute criminal activity. Nothing we could say would substitute for the sound judgment that judicial officers must exercise in striking this delicate balance.
  Among the new powers that the Ninth Circuit today specifically bestowed on magistrate judges is this one:
The government should, in future warrant applications, forswear reliance on the plain view doctrine or any similar doctrine that would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data. If the government doesn't consent to such a waiver, the magistrate judge should order that the seizable and non-seizable data be separated by an independent third party under the supervision of the court, or deny the warrant altogether.
(emphasis added). This raises a very important question that the Ninth Circuit doesn't address, perhaps because it never occurred to the judges on the en banc court: Does a magistrate judge have the power to refuse to sign a warrant that is based on probable cause and is constitutionality particular but that the magistrate judge fears would be executed in a way that is unconstitutional or otherwise too invasive?

  The precedents I am aware of suggest that the answer is "no." See Abraham S. Goldstein, The Search Warrant, the Magistrate, and Judicial Review, 62 N.Y.U. L. Rev. 1173, 1196 (1987) ("The few cases on [whether a magistrate judge can refuse to issue a warrant on the ground that the search may be executed unconstitutionally] hold that a judge has a 'ministerial' duty to issue a warrant after 'probable cause' has been established."); In re Worksite Inspection of Quality Products, Inc., 592 F.2d 611, 613 (1st Cir. 1979) (noting the limited role of magistrate judges in issuing search warrants); Ex Parte United States, 287 U.S. 241, 250 (1932) (holding that a magistrate judge did not have discretion to refuse to issue an arrest warrant after the the grand jury returned an indictment, and noting that "the refusal of the trial court to issue a warrant . . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls little short of a refusal to permit the enforcement of the law.").

  I think these authorities make a lot of sense. Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant. Otherwise you end up with a tricky situation. Imagine a magistrate refuses to sign a warrant unless the government makes promises as to how the warrant will be executed. On one hand, if the government's promises are enforceable, then the magistrate judge gets to determine the Fourth Amendment as she pleases regardless of what the district judges, circuit judges, and Supreme Court Justices say the law actually is. On the other hand, if the promises the government makes are unenforceable, then you end up with the very awkward situation of the government making a promise to a federal judge and then feeling free to break it.

  Neither of these options are very good ones. But in my view neither is necessary, either: I don't think magistrate judges have the power to condition signing warrants on grounds other than probable cause and particularity. The constitutionality of how the warrant is executed is a question for judicial review after the warrant is executed, not negotiations with a magistrate beforehand. At least that's the traditional understanding: It appears to be no longer the law in the Ninth Circuit as of this morning.
Philistine (mail):
Orin,

Do you know what (if any) rulings there have been on requiring special procedures in other types of searches?

For instance, I understood (but only from fairly casual reading) that affidavits for search warrants seeking information from a lawyer's files stated they would use certain procedural mechanisms (like a filter team) to prevent priviliged information from being seen--the implication being that the magistrate would deny the request if such procedures were not in place.

If that were the case, this seems at least conceptually similar--though obviously protecting priviliged information is different than protecting against a broadening of the search in general.
8.26.2009 2:53pm
martinned (mail) (www):
... but magistrate judges could be given this power by statute, right?
8.26.2009 3:16pm
alkali (mail):
I tend to think it's jurisdictional. Courts have inherent authority to take reasonable steps to ensure that their orders are not misused.
8.26.2009 3:25pm
Michael J.Z. Mannheimer:
Orin,

My initial inclination is to disagree. First, the text of the Fourth Amendment appears to state a set of necessary, not sufficient, conditions for issuance of a warrant: "No warrants shall issue but upon probable cause . . . ." It does not say that every time executive officials go to a magistrate and ask for a warrant, they must get it as long as they fulfill the issuance requirements. It would have been easy enough to write: "Warrants shall issue upon probable cause . . . ." (Granted that we have long since abandoned a truly textual approach to the Fourth Amendment). Second, my sense, given the anti-federalist underpinnings of the Bill of Rights, is that the framers and ratifiers of the Fourth Amendment would have welcomed the wise discretion of the local federal magistrate as a buffer between a zealous prosecutor and "the people." If a local citizen were in violation of federal law, but that law were unpopular in a particular locale, I think the framers and ratifiers of the Bill of Rights would desire a kind of "magistrate nullification" in the same way that they so fought for a robust jury-trial right because they wanted local juries to nullify in the face of an unpopular federal prosecution. Third, I think that the institutional correctives discussed in U.S. v. Leon vis-a-vis keeping magistrate judges in line should assuage some of your concerns.
8.26.2009 3:26pm
Don Miller (mail) (www):
I think part of the reasoning the procedures are spelled out in such detail and specificity in this decision is because the Court is trying to fix an obvious abuse by the Government that appears to be pervasive.
8.26.2009 3:43pm
OrinKerr:
Alkali, Michael,

Okay, let's say you're right, and DIstrict Judge I.M. Nuts in the Central District of California genuinely believes that the Fourth Amendment requires the police to sing Barry Maniow tunes when they execute search warrants. The police don't want to, but Judge Nuts won't sign the warrant unless they go in hollering "Mandy" the whole time. The police finally agree, as they want the warrant.

When they execute the warrant, though, the police refuse to sing. What result? Suppression of the evidence for the Manilow violation?
8.26.2009 3:55pm
Lior:
What Martin Mannheimer and martinned said.

The Constitution sets necessary requirements for the issuance of warrants, but does not seem to exclude additional requirements. I would guess that adding requirements is a legislative function, hence vested in Congress and not the Courts, but I think I'm a bit behind the times regarding who gets to exercise legislative functions.
8.26.2009 3:56pm
Nick42 (mail):
If judges are not allowed to premise the issuing of a warrant upon how it may be executed and qualified immunity effectively prevents punishing bad government actors after the fact, what is the remedy for 4th amendment violations?

This seems to be especially worrisome when innocent 3rd parties who are not accused of a crime are affected. A recent case where the FBI seized many or all servers in a datacenter containing the target of a search warrant. The exclusionary rule obviously won't help the innocent affected companies. This case mentions returning the records / computer within 60 days. Going without computers ( or having to rebuild everything ) for 60 days would kill a good number of companies.
8.26.2009 4:02pm
AF:
Okay, let's say you're right, and DIstrict Judge I.M. Nuts in the Central District of California genuinely believes that the Fourth Amendment requires the police to sing Barry Manilow tunes when they execute search warrants. . . .

Mandamus. I don't see this as a likely problem.
8.26.2009 4:16pm
Monty:
Part of the problem the court is adressing is that most if not all law enforcement agencies view the 4th amendment as a hurdle to be overcome rather then a guiding principal. Once they have the warrant they will go as far as legally possible to search, rather then stopping the search when it starts to look like thier probable cause was bunk. Example the case discussed in a recent post where the police searched the computer during a drug search, and found child porn. By the time they got to the computer they had been through the appartment. Finding nothing to substantiate the probable cause, which was that drug dealing was being undertaken, they kept digging, and searched the computer for 'records' of the drug dealing. Yet when they found no drugs, and found no evidence of drug activity in the house, was it really reasonable to search that computer? If they were acting in the spirit of the 4th amdendment, they would have ceased the search when it looking like the information supporting probable cause was bogus. Clearly this is permissible under current precedent, but with the massive amount of information that may be stored on a computer, it shouldn't be.
8.26.2009 4:17pm
Fub:
AF wrote at 8.26.2009 4:16pm:
Mandamus. I don't see this as a likely problem.
Especially as it inflicts cruel and unusual punishment before conviction or even indictment.
8.26.2009 4:21pm
Specast:
Orin,

Suppression, it seems to me, is the proper remedy (your hypo implies that the failure to comply was intentional and perhaps even foreseen). What other alternative would be even mildly meaningful?

Also, because I really don't know the answer: cannot the police/prosecutor seek assistance if they believe the magistrate is improperly limiting (or refusing to sign) their requested warrant, presumably through some sort of appeal? I gotta believe the answer is yes. If so, the danger of unreasonable warrant limits is substantially limited. Even in the absence of such an appeal, the p/p could always begin a compliant search, then seek looser reins based on a more experienced showing.

I thought Kozinski's opinion was remarkably rule-makey. But I don't have a problem with the proposition that a magistrate may take steps to ensure that a search will actually comply with the 4th Amendment.
8.26.2009 4:23pm
Malvolio:
Okay, let's say you're right, and District Judge I.M. Nuts in the Central District of California genuinely believes that the Fourth Amendment requires the police to sing Barry Manilow tunes when they execute search warrants. The police don't want to, but Judge Nuts won't sign the warrant unless they go in hollering "Mandy" the whole time.
What would happen if Judge Toda Lee-Nuts (spouse of I.M. Nuts above) believed that a videotape of the suspect committing a mugging doesn't constitute probable cause to search the suspect's home for the proceeds of the crime? An insane, or merely inept, judge is always going to be a problem and any step that gives the judge more power is going to make it worse. But the alternative, forcing a (presumably sane, ept) judge to authorize a search that will violate the Constitution, seems far worse.

"You came and you gave without taking, but I sent you away, oh, Mandy..."
8.26.2009 4:23pm
Angus:
To me, as a non-lawyer, this is what I would expect magistrate judges to do--use some judgment. Otherwise, why not just replace them with computer terminals who spit out the warrant signature based on a computation of when the data entered by the prosecutor reaches "probable cause?"

Seems to me that judges are supposed to make sure the Constitution is followed at every step of the way, not just on appeal afterward.
8.26.2009 4:31pm
einhverfr (mail) (www):
If a warrant would likely be executed in a way which is overbroad, wouldn't that suggest that it wasn't particular enough? Is this just a prong on the particularity analysis?

Or does it go well beyond that?
8.26.2009 4:33pm
Don Miller (mail) (www):

Seems to me that judges are supposed to make sure the Constitution is followed at every step of the way, not just on appeal afterward.


As a non-lawyer, I would agree, but it seems to me that there is a presumption built into our judicial system that the Government agents are always acting in good faith.

The more I read this decision, the more I believe it was written particularly harsh because the Government has been abusing computer searches for years and the 9th Circuit felt a need to put a tight leash on them.
8.26.2009 4:34pm
ttre (mail) (www):
OK, you tend to favor very broad search powers, I don't think I've ever heard you criticize a search.
8.26.2009 4:46pm
David Schwartz (mail):
The conflict you see is, I think, imaginary. This is a probable cause issue.

For example, if the government wants a warrant to search for illegal ammunition, the Magistrate does not expect that everyone on the premises will be strip searched. Your rectum is container. And ammunition could theoretically be hidden there. But unless there is probable cause to think the ammunition would be hidden in someone's rectum, the probable cause does not justify a body cavity search.

This is simply about ensuring the search does not extent beyond the bounds justified by the probable cause presented.
8.26.2009 4:55pm
widget:
Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular.


Is Judge Kozinski's opinion not essentially concerned about a problem of particularity here? "The point of the Tamura procedures is to maintain the privacy of materials that are intermingled with seizable materials, and to avoid turning a limited search for particular information into a general search of office file systems and computer databases." (11876)

The court's language about "waiver" and "forswear" that you quote is a little odd, and you certainly know more about warrant procedures than I do. But in substance, a warrant expressly limiting the government's ability to use intermingled nonseizable materials seems like a reasonable attempt to narrow the scope of the warrant to legitimately seizable material -- and consistent with the role of the magistrate you outline, about which I assume you are wholly correct.

The earlier commenters' arguments that the government's remedy if it doesn't like a warrant that is limited in that way is mandamus -- probably under a looser advisory mandamus approach the first time in a circuit to establish the governing law, then under a stricter supervisory mandamus standard to enforce that law against an erratic magistrate if necessary in the future. If the government doesn't pursue that avenue and violates the terms of the warrant, then suppression (or Bivens / section 1983) is the remedy for the owner of the information.
8.26.2009 4:57pm
alkali (mail):
What AF and Malvolio said. FWIW, the reason I answered that way is that I think it is the answer that most judges would actually give, and not because it is an entirely unproblematic answer.
8.26.2009 5:06pm
OrinKerr:
OK, you tend to favor very broad search powers, I don't think I've ever heard you criticize a search.

This is an amusing response given that my law review article on this topic argues that the plain view exception should be abolished for computer searches. (Not to mention that I often blog for the defendant in prominent S&S cases, like Virginia v. Moore.)
8.26.2009 5:09pm
Joe T. Guest:
Does anybody else see a separation of powers problem with this, particularly at the federal level? Cops seek warrant. Judge issues search warrant. Judge then supervises police as they conduct their search. They find something interesting - under the judge's supervision. The cops then seek additional permissions for search. Judge issues supplemental warrant...

Seems to me if the judge is an impartial finder of fact and issuer of rulings of law, he has no business whatsoever closely supervising the police in the conduct of their duties. The decision seems to me to be a step towards the civil inquisitions prevalent in Spain and France. Seems to me this would also give rise to a pretty serious conflict of interest when the individual searched later seeks to surpress.
8.26.2009 5:10pm
Oren:
The root of the problem (as I see it, YMMV) is that the plain-view doctrine is, by its very terms, inapplicable to a computer search. Reciting Horton:

1. lawfully present at the place where the evidence can be plainly viewed,
2. the officer must have a lawful right of access to the object, and
3. the incriminating character of the object must be "immediately apparent."

(1) Evidence on a computer hard drive cannot be "plainly viewed" in the process of looking for something else. If you see the content of "C:\Oren's illegal stuff\Child_porn.jpg" it's because you specifically and intentionally requested the data from that file to be displayed.

If we must reason by analogy (even in cases where straightforward reasoning seems to be sufficient), then the files on a computer are analogous to closed containers with the filename (and other metadata such as last-modified time, security and such like) stamped on the front. Since officers conducting a warrant may not look into random closed containers without them falling under the particularity requirement, they should not be able to open files except those relevant to their search.

(2) Applying (2) to a computer search is likewise illogical, since this is all done by forensics folks in a back office. One might read "lawful" to mean "within the scope of the warrant", but that's circular.

(3) File have no external "character" that can be incriminating. Each has only a name (which may or may not reflect the contents) and some generally-useless metadata. So the idea that you can discern the "obviously incriminating" nature makes little sense.

Since there should be no plain-view doctrine for these computer searches, there is no need for the magistrate to deny searches that will be conducted in an overly broad manner since anything discovered outside the particulars of the warrant ought to be supressed.
8.26.2009 5:10pm
OrinKerr:
I should also point out that doctrinally, the Ninth Circuit was spanked the last time it invented new limitations on when magistrates should authorize warrants: United States v. Grubbs. From Justice Scalia's opinion:
We have previously rejected efforts to expand the scope of [the particularity requirement] to embrace unenumerated matters. In Dalia v. United States, 441 U. S. 238 (1979), we considered an order authorizing the interception of oral communications by means of a "bug" installed by the police in the petitioner's office. The petitioner argued that, if a covert entry is necessary to install such a listening device, the authorizing order must "explicitly set forth its approval of such entries before the fact." Id., at 255. This argument fell before the " 'precise and clear' " words of the Fourth Amendment: "Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the [requirements set forth in the text], search warrants also must include a specification of the precise manner in which they are to be executed." Id., at 255 (quoting Stanford v. Texas, 379 U. S. 476, 481 (1965)), 257. The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.,
8.26.2009 5:13pm
Oren:

This is an amusing response given that my law review article on this topic argues that the plain view exception should be abolished for computer searches.

Doh! I totally missed that part and cluttered up the thread with a poor version of that argument.

So the 9CA is making one bad rule to fix the obvious problems in applying another bad rule. Given that PVE in CS might continue for some time, this bad rule might be a net positive.
8.26.2009 5:14pm
OrinKerr:
Oren writes: "So the 9CA is making one bad rule to fix the obvious problems in applying another bad rule."

Yes, I think that's pretty much what is happening; I have a post coming up on that soon.
8.26.2009 5:15pm
FmrADA (mail):
Add me to those who disagree. The 4th Amendment is a set of requirements, not sufficient conditions. For example, knock-and-announce requirements or no-knock provisions are frequently written into warrants. The form of federal warrant and the magistrate's obligation to issue are creations of federal statutory law (e.g. federal rule of criminal procedure 41), not constitutional law.

If these provisions are troubling to Orin, so should be the exclusionary rule. That's originally a court-created rule designed to give teeth to the search and seizure protections of the 4th amendment by manipulating the evidentiary rules. Congress can always step in here, but if the 9th Circuit wants to protect the 4th amendment in digital search situations by threatening use of the exclusionary rule whenever law enforcement or magistrates fail to observe the 9th Circuit's prophylactic rules, there is precedent for it.
8.26.2009 5:19pm
widget:
Hmm. I concede that Grubbs provides significant support to your position, and also that if the correct rule is that the plain view exception shouldn't apply in the first place then the motives (with which I sympathize) underlying Judge Kozinski's apparent creativity would disappear.
8.26.2009 5:21pm
Oren:

The language of the Fourth Amendment is likewise decisive here; its particularity requirement does not include the conditions precedent to execution of the warrant.

Interestingly, the text of the 4A also does not limit the officer's search to the particular items described. Taking the text far too literally would then suggest that so long as the affidavit particularly describes some item to be searched, other things may be searched as well. This is utter nonsense.

Surely the particularity requirement is meant, in some fashion, to restrict the search to things actually described in the warrant. I agree that the 9CA solution in this instance is not appropriate, but I sympathize with the desire to impose this requirement in some fashion.
8.26.2009 5:22pm
Oren:

Congress can always step in here, but if the 9th Circuit wants to protect the 4th amendment in digital search situations by threatening use of the exclusionary rule whenever law enforcement or magistrates fail to observe the 9th Circuit's prophylactic rules, there is precedent for it.

But they are not threatening to exclude (which would be proper for a court), they are asserting the right to supervise the search from the inception.
8.26.2009 5:25pm
martinned (mail) (www):

Surely the particularity requirement is meant, in some fashion, to restrict the search to things actually described in the warrant.

Or rather, to the extent that the search exceeds the warrant, we're back to the original rule, which is that searches (and seizures) may not be "unreasonable".
8.26.2009 5:28pm
RPS (mail):
Orin,

You may want to note somewhere that this is the BALCO case. I realize it's not relevant to the substance, but I suspect many fans/lawyers were waiting to see how it came out and I completely missed the connection until I read the "official" case name on ESPN.
8.26.2009 5:33pm
Michael J.Z. Mannheimer:
Orin,
No, because there is no Fourth Amendment violation!

You are conflating the question whether the Fourth Amendment prohibits the magistrate from imposing additional requirements with the question whether any positive law authorizes the magistrate to take such an action. I was answering only the first question, as your original post, if I read it correctly, seems to argue that the Fourth Amendment imposes not only the constitutionally necessary conditions for issuance of a warrant but also the constitutionally sufficient conditions for issuance of a warrant. ("Under the Fourth Amendment, the magistrate's job is to determine if the warrant is based on probable cause and is sufficiently particular. These are the only requirements of the facial validity of a warrant, and so I would think are the only grounds for a magistrate judge denying a warrant.")

Suppose Congress passes a statute (the Manilow Execution of Warrants Act, or MEWA) requiring federal agents to sing "Mandy" while executing a warrant. Agents fail to do so, though the warrant itself is valid and otherwise executed properly. There would be no suppression, unless that were the remedy prescribed by the statute, because there is no Fourth Amendment violation -- only a violation of the statute. But as I read your remarks, you seem to think the statute would be unconstitutional because it adds to the bare minimum prescribed by the Fourth Amendment (a la Powell v. McCormick, perhaps). For the reasons I have already stated, I disagree.

Now that I have answered your question, maybe you can address my arguments based on the text and and original public meaning of the Fourth Amendment.
8.26.2009 5:38pm
OrinKerr:
Michael Mannhemier writes:
No, because there is no Fourth Amendment violation!

You are conflating the question whether the Fourth Amendment prohibits the magistrate from imposing additional requirements with the question whether any positive law authorizes the magistrate to take such an action.
Just so I understand you, then, magistrates are permitted to extract promises as to how they execute the warrant, and the police are free to lie to the judges and ignore what they promised? If that's so, I have no idea why it matters whether magistrates have the power: It is a nullity because it is entirely unenforceable. I guess that's a possible rule, but it's clearly not what Kozinski has in mind.
Now that I have answered your question, maybe you can address my arguments based on the text and and original public meaning of the Fourth Amendment.
As for the text and original public history, I am not persuaded by your arguments. The text doesn't say either way. Imagining a different Fourth Amendment text that would have expressly answered this question, and then saying that the absence of this should be read as implying that the power exists, strikes me as quite weak; one can use that style of inquiry to justify almost any rule. Your effort to discern original public meaning seeme to be such a high level of generality that it seems unfaithful to the inquiry. As I understand it, original public meaning is what the language was understood to mean, not our guesses as to what the people might have thought about an issue based on our sense of the politics of the age if they in fact been confronted with the issue.
8.26.2009 6:16pm
martinned (mail) (www):
@OrinKerr: It seems pretty obvious that the possibility exists to craft additional requirements for warrants. I see no other reasonable reading of the plain text of the amendment. (No warrant shall issue unless requirements X and Y are met = requirement Z is neither required nor forbidden.)

The only question is whether this power lies only with the legislature, or also with the courts or even magistrates.
8.26.2009 6:21pm
OrinKerr:
Martinned, can you square that with United States Supreme Court precedent like Ex Parte United States and United States v. Grubbs? The Supreme Court has spoken to the issue, and some people think the Ninth Circuit is bound by that.
8.26.2009 6:27pm
martinned (mail) (www):
@OrinKerr: Hang on while I look at those cases.
8.26.2009 6:36pm
martinned (mail) (www):
In Ex Parte United States, the Court seems to have refused to issue an arrest warrant without setting any additional requirement, merely as an act of "judicial discretion". In addition, I'd say the presence of the grand jury makes that case distinguishable from a search warrant which is issuable only on application to the magistrate.

I'm not sure why Grubbs would be a relevant precedent here. There doesn't seem to have been any attempt at judicial discretion there. The only question there seems to have been whether an anticipatory warrant is possible given the requirements that the fourth amendment explicitly sets.

Neither of these cases speak to the possibility of enacting an additional requirement by statute, or by "common law" lawmaking in the Court of Appeals, as in this case.
8.26.2009 6:46pm
OrinKerr:
martinned,

I disagree with your reading if those cases. For example, Grubbs seems to me to say that you can't just start imposing additional requirements on the warrant: That's what the 9th tried to do, and that's what the SCT said was not permitted. Or do you read Grubbs as saying that courts are free to invent new common law requirements, but just that the SCT didn't agree that those were good common law requirements to add?
8.26.2009 7:01pm
MJD:
I think Congress could definitely enact the Manilow requirement. And I think, subject to Congress speaking on the issue, the Supreme Court could enact it as a matter of its supervisory power.

I would think that also means that the Ninth Circuit could do so, so long as everything else was silent.

Anyway, I took a look at the law review bit you did Orin, and saw where you argued for abolishing plain view (as one possible outcome). In the absence of action by the Supreme Court, could Kozinski et al have just eliminated it more head-on, rather than by requiring the government to "waive it" lest magistrates not issue the warrant? Seems like a more straightforward way to do it, but I always thought those were bugaboos with whether a lower court can abolish a legal rule of general application in what it believes a new circumstance.
8.26.2009 7:05pm
martinned (mail) (www):
@OrinKerr: Sorry, my glance-through of Grubbs was too quick. That case does seem to reject the possibility of court-made additional requirements. From page 7/9:


[This is where I was going to quote the exact same section of Justice Scalia's ruling that you already quoted in your 5:13 comment.]

This is curious, given that I'd imagine the overriding purpose of the warrant requirement is to protect against "unreasonable" searches and seizures, but I guess it only serves to show that the US is less of a common law country than they like to think.

That leaves the possibility of enacting the Barry Manilow rule in the legislature, as suggested by Michael J.Z. Mannheime in his 5:38 comment. It also leaves the possibility of bringing a new requirement within the existing ones, or arguing it from another amendment entirely. (Privacy = Griswold = 5th, 9th, &14th?)
8.26.2009 7:22pm
David Schwartz (mail):
OrinKerr: I find your argument convincing. Magistrates cannot prospectively cure possible fourth amendment violations in the execution of the warrant by attaching conditions to the issuance of the warrant. These kinds of violations can only be corrected after they happen.

If the police want to search for illegal ammunition and show probable cause and state the place to be searched, the magistrate cannot say "you cannot burn down the house to find the ammunition" or "you cannot strip-search everyone to find the ammunition". Though those are reasonable restrictions that may prevent fourth amendment violations in the execution of the warrant, that's simply not the Magistrate's job.
8.26.2009 7:26pm
einhverfr (mail) (www):
Thinking through MJD's response, if the 9th Circuit can't abolish the plain view rule themselves, isn't this the best way to get the Supreme Court to rule on the matter?
8.26.2009 7:28pm
Jonfair (mail):
Orin, can you direct me to your article that argues for the removal of the plain view doctrine as it applies to computer searches? In light of your Miller Doctrine position of keeping the 4th amendment technically nuetral, I do not see why a digital search should be treated differently.

Let me give you an example. The police have tracked a series of computer hacking incidents to an IP address, and from the IP address, to a partiuclar apartment. As part of the warrant for the home, they include a reqeust to search for evidence of dominion, ownership and control of the apartment. The warrant also authorizes the officers to search for a computer, for files relating to the hack, and includes specific authorization to search for items showing who has dominion, ownership and control over the computer at the time the hack occured.

They hit the apartment, and find a photo album of the suspect. In the back of the album are printed CP pictures- found during the search for dominion and control evidence in plain view.

During the search of the computer, the examiner searches the my pictures folder and finds in addition to family pcitures that match those of the suspect in the album, images of CP that were downloaded.

Why should plain view be different for the computer?
8.26.2009 8:02pm
Cleanville Tziabatz:
This is a very good decision. Because magistrates are a better Consitutional safeguard than policemen. Orin, with all due respect, has his hed, expectedly, up a dark place on this one.

What leagal principle gives cops gr8ter discretion than judges here? The obvious answer is that judges absolute discretion under 4A.
8.26.2009 8:24pm
David Schwartz (mail):
CT: We're not arguing over what the rule should be but over what the rule actually *is*. I agree that it would be a better rule for the police and the judge to come to a meeting of the minds over how the warrant will be executed. It makes more sense for judges to prospectively cure 4th amendment violations than have to try to fix them after the fact, after irreparable harm has been done. But the cases Orin Kerr cited pretty conclusively establish that this is not the law.
8.26.2009 8:35pm
Stiller:
Since Grubbs allows judges to propose conditions precedent, then why an't they impose conditions subsequent? It's like having two warrants one for the house and one for the computer.
8.26.2009 8:42pm
Stiller:
"why can't"
8.26.2009 8:44pm
Stiller:
Or why isn't this just another condition precedent, which Grubbs allows?
8.26.2009 8:52pm
Oren:

The warrant also authorizes the officers to search for a computer, for files relating to the hack, and includes specific authorization to search for items showing who has dominion, ownership and control over the computer at the time the hack occured.

They hit the apartment, and find a photo album of the suspect. In the back of the album are printed CP pictures- found during the search for dominion and control evidence in plain view.

During the search of the computer, the examiner searches the my pictures folder and finds in addition to family pcitures that match those of the suspect in the album, images of CP that were downloaded.

The examiner of the computer should not have looked in "My Pictures" since it cannot possibly contain evidence of the crime of computer hacking for which the warrant was issued.
8.26.2009 8:53pm
Bill N:

I think Congress could definitely enact the Manilow requirement.
Nope--8th Amendment.
8.26.2009 9:00pm
Cleanville Tziabatz:
cases Orin Kerr cited pretty conclusively establish that this is not the law

selective cites -- in a hed up dark place bias in selective citing -- 4A makes it clear that judges, not cops, are primary 4a tribunal -- bvut, hey, 9/11 and stuff!!!1!!
8.26.2009 9:03pm
David M. Nieporent (www):
I disagree with your reading if those cases. For example, Grubbs seems to me to say that you can't just start imposing additional requirements on the warrant: That's what the 9th tried to do, and that's what the SCT said was not permitted. Or do you read Grubbs as saying that courts are free to invent new common law requirements, but just that the SCT didn't agree that those were good common law requirements to add?
Orin, does the fact that judges can't strike down a search ex post because it didn't satisfy additional requirements (Grubb) necessarily mean that judges can't impose additional requirements ex ante? It's not clear to me that it does.
8.26.2009 9:13pm
Oren:

4A makes it clear that judges, not cops, are primary 4a tribunal

A tribunal judges actions after they have transpired. It doesn't monitor them or place conditions, ex ante.

The proper thing is to suppress the fruits of searches that are outside the particularity of the warrant, not to concoct whimsical schemes to be applied at the point of search.
8.26.2009 9:16pm
Stiller:

It doesn't monitor them or place , econditionsx ante.


In Grubbs, the court found conditions ex ante on a warrent to be constitutional. So they do place them ex ante.
8.26.2009 9:19pm
David M. Nieporent (www):
The examiner of the computer should not have looked in "My Pictures" since it cannot possibly contain evidence of the crime of computer hacking for which the warrant was issued.
Oren, is this like that other time you were just arguing stuff for the sake of being stubborn that you later admitted you didn't really believe? Because that doesn't make the slightest bit of sense, for any definition of "cannot possibly" that I can think of.
8.26.2009 9:34pm
Melancton Smith:
Orin Kerr wrote:

The police don't want to, but Judge Nuts won't sign the warrant unless they go in hollering "Mandy" the whole time. The police finally agree, as they want the warrant.


Now that is change I can believe in!
8.26.2009 9:48pm
David Schwartz (mail):
DMN: So can cops looking for ammunition strip search every single occupant? After all, you can't say that ammunition "can't possibly" be hidden in someone's rectum.

I agree, it's incorrect to say the evidence "can't possibly" be there. But the additional and unusual intrusiveness of the search is unreasonable unless justified by additional and unusual probable cause.
8.26.2009 10:19pm
David M. Nieporent (www):
DMN: So can cops looking for ammunition strip search every single occupant?
If the warrant says they can, sure.
8.26.2009 10:42pm
David Schwartz (mail):
DMN: Right, but if the warrant doesn't? And can it say they can't?
8.26.2009 11:57pm
Joe T. Guest:

This is a very good decision. Because magistrates are a better Consitutional safeguard than policemen.

Then let's just have the magistrates conduct raids and traffic stops and criminal investigations, since the interest vindicated by those activities, apparently, is safeguarding the constitution.

On the other hand, some would argue that the executive branch has some interests to vindicate in its law enforcement activities. Why do they hate the Constitution?
8.27.2009 9:21am
ShelbyC:

. . . is, in reality and effect, a refusal to permit the case to come to a hearing upon either questions of law or fact, and falls little short of a refusal to permit the enforcement of the law.").


But isn't that what the various abstention doctrines, and similar things like prudential standing, do? You'd think they can refuse to do anything unless there's an indistinguishable case saying there's no abstention applicable, correct?
8.27.2009 12:20pm
einhverfr (mail) (www):
Oren:


The examiner of the computer should not have looked in "My Pictures" since it cannot possibly contain evidence of the crime of computer hacking for which the warrant was issued.


You're joking, right?
8.28.2009 8:34pm

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